Opinion
CT2024-0018
09-25-2024
STATE OF OHIO Plaintiff-Appellee v. SARAH STEEN Defendant-Appellant
For Plaintiff-Appellee: Joseph A. Palmer Assistant Prosecutor For Defendant-Appellant: Chris Brigdon
Character of Proceeding: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0506
Judgment: Affirmed
For Plaintiff-Appellee: Joseph A. Palmer Assistant Prosecutor
For Defendant-Appellant: Chris Brigdon
Judges: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J.
OPINION
DELANEY, P.J.
{¶1} Appellant Sarah Steen appeals from the January 24, 2024 Entry of conviction and sentence of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} In September 2019, appellant was "trespassed" from all Wal-Mart locations, meaning she was given a form notifying her she was no longer permitted on any Wal-Mart store premises.
{¶3} On July 28, 2023, appellant entered a Wal-Mart in Muskingum County by walking through the front door, which was triggered by a motion sensor. Appellant soon attracted the notice of an asset-protection officer who followed her throughout the store. The officer observed appellant walk to the shoe department, kick off her own shoes and put on a pair of new shoes. Appellant then walked past all points of sale in the new shoes without paying for them.
{¶4} The officer tried to stop appellant, stating they needed to talk about the shoes, but appellant said the shoes were hers and walked out of the store. The officer called the Sheriff's Office to report a shoplifting incident and generated a receipt for the value of the stolen shoes, which was $10.98.
{¶5} The officer also learned appellant had previously been "trespassed" from Wal-Mart, meaning she was told she was not to enter upon any Wal-Mart premises. This information is contained in a database maintained by Wal-Mart. The asset-protection officer retrieved a copy of the notice appellant was given, which was also part of appellee's evidence at trial. The "trespass" action and notice are permanent, do not expire, and apply to all Wal-Mart and Sam's Club premises. The notice was read at trial, entered into evidence by appellee, and states the following:
* * * Wal-Mart can prohibit individuals from entering its property who interfere with its business, shoplift, destroy property, or otherwise behave in a manner which is unacceptable to Wal-Mart.
Wal-Mart has determined you have engaged in conduct sufficient to necessitate limiting your access to Wal-Mart property. This document constitutes formal notice and warning that you are no longer allowed on Wal-Mart property or in any area subject to Wal-Mart's control.
This restriction on entry includes but is not limited to all Wal-Mart retails locations. Should you elect to ignore this notice and enter Wal-Mart property, Wal-Mart may contact law enforcement and request you be charged with criminal trespass. ** * *.T. 171-172.
{¶6} The trespass notice was dated September 1, 2019.
{¶7} Upon cross-examination, the asset-protection officer testified he recognized appellant from other visits to the Muskingum County Wal-Mart and observed her in the store several times, but never before had reason to check whether she was "trespassed."
{¶8} Appellee's evidence included video of appellant stealing the shoes and walking out of the store from multiple viewpoints.
{¶9} At trial, defense trial counsel freely admitted appellant stole a pair of shoes worth $10.98, but argued she did not enter the store by force, stealth, or deception and should not be convicted of burglary.
{¶10} Appellant was charged by indictment with one count of burglary pursuant to R.C. 2911.12(A)(1), a felony of the second degree, and one count of theft pursuant to R.C. 3.02(A)(1), a misdemeanor of the first degree. The matter proceeded to trial by jury. Appellant moved for a judgment of acquittal at the close of appellee's evidence and at the close of all of the evidence; the motion was overruled. T. 211, 265. Appellant was found guilty as charged. The trial court imposed an aggregate indefinite prison term of five to seven and a half years.
Appellee noted the pre-sentence investigation (P.S.I.) revealed appellant was on community control when she committed the offense and also had a failure-to-appear warrant. Appellant's criminal history included prior felony convictions and prison terms, and multiple theft offenses from Wal-Mart. Appellant acknowledged a history of substance abuse and failed attempts at rehabilitation.
{¶11} Appellant now appeals from the trial court's judgment entry of conviction and sentence.
{¶12} Appellant raises the following assignments of error:
Appellant has not designated assignments of error. Instead, she presents three numbered "arguments," but several of the numbers are portions of other arguments. The "assignments of error" cited here are captions within appellant's brief. For clarity, we have renumbered the assignments of error and will address each of appellant's arguments thereunder.
ASSIGNMENTS OF ERROR
{¶13} "I. INSUFFICIENT EVIDENCE AS IT RELATES TO COUNT 1 BURGLARY IN VIOLATION OF O.R.C. 2911.12(A)(1)."
{¶14} "[II.] INEFFECTIVE ASSISTANCE."
{¶15} "[III.] AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
ANALYSIS
I., III.
{¶16} Appellant's first and third assignments of error are related and will be addressed together. Appellant argues her burglary conviction is not supported by sufficient evidence and are against the manifest weight of the evidence. We disagree.
Appellant does not challenge her theft conviction.
{¶17} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt."
{¶18} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the "thirteenth juror," and after "reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered." State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.
{¶19} Appellant was found guilty upon one count of burglary pursuant to R.C. 2911.12(A)(1), which states, "No person, by force, stealth, or deception, shall * * *: [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense[.]"
{¶20} Criminal trespass, in turn, is defined in R.C. 2911.21(A) as:
No person, without privilege to do so, shall do any of the following:
(1) Knowingly enter or remain on the land or premises of another;
(2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows the offender is in violation of any such restriction or is reckless in that regard;
(3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated
to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access;
(4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either.
In the instant case, appellant trespassed because she did not have permission to be on any Wal-Mart premises due to the 2019 notice of trespass. Appellant does not challenge the trespass element of the offense.
Trial argument: not aware of trespass and did not enter by force, stealth, or deception
{¶21} At trial, appellant conceded to the theft offense. T. 238. Appellant argued at trial no evidence existed that she knew she wasn't allowed to be at Wal-Mart. Appellee responded with the testimony of Officer Bollinger, a Zanesville police officer who was present at the Wal-Mart location on September 1, 2019 when appellant was given the trespass notice. He identified appellant in the courtroom as the subject of the notice, and testified that she was not able to sign it because she was in handcuffs.
{¶22} Further, at trial appellant argued she didn't act with any stealth or force to enter the store. Defense trial counsel focused on the "force" element of the statute and argued appellant's entrance into the store did not involve force, stealth, or deception. The jury was instructed that "force" in the burglary statute means any violence, compulsion, effort, or constraint exerted or used by any means upon or against a person or thing to gain entrance. T. 253. "Stealth" means any secret or sly act to avoid discovery or to gain entrance into or remain within a structure of another without permission. T. 253.
{¶23} In this case, appellee argued that adequate "force" occurred when appellant deliberately stepped in front of the automatic doors, causing them to open. T. 217. Appellee also argued appellant entered the store with deception, acting like an ordinary customer when she knew she wasn't permitted to be there. Appellant wasn't allowed to enter the store because she was "trespassed" in Wal-Mart parlance, meaning, she was previously told and given notice that she was not permitted on Wal-Mart property.
{¶24} The Wal-Mart asset protection associate testified appellant entered the store by triggering and walking through automatic doors at the front (grocery) entrance. This action has been found to constitute "force" for the purpose of committing burglary inside a store during business hours, including in a fact pattern similar to the instant case in which the burglar entered Wal-Mart through automatic doors. State v. Hahn, 3rd Dist. Henry No. 7-21-02, 2021-Ohio-3789, ¶ 31. See also, State v. Duke, 6th Dist. Wood No. WD-20-001, 2021-Ohio-1552, ¶ 34-35 [evidence that a person "activat[ed] the door sensors when she walked into [a Kohl's store] * * * and triggered the two sliding doors to open and stay open as she passed through" was found to be sufficient to establish the "force" element of burglary.
Appellate argument: petty theft should not be treated as burglary, Wal-Mart is not an "occupied structure"
{¶25} Appellant also concedes on appeal that she stole the shoes, but argues she should not have been convicted of burglary because the low monetary value of the shoes does not rise to a felony level, and the legislature didn't intend the burglary statute to be applied to a busy commercial building such as a store.
{¶26} Appellant first argues the burglary statute was not intended to address commercial properties in the middle of a busy day, such as Wal-Mart. An "occupied structure" includes any building or other structure at the time any person is present or likely to be present in it. R.C. 2909.01(C)(4). Contrary to appellant's argument, the store qualifies as an "occupied structure." "Because the business was open to the public during normal business hours when the crime occurred, it is without questions that the corner store qualifies as an occupied structure under the law." State v. Carradine, 8th Dist. No. 101940, 2015-Ohio-3670, 38 N.E.3d 936, ¶ 23 [corner store qualifies as an "occupied structure"]. See also, e.g., State v. Ferguson, 71 Ohio App.3d 342, 348, 594 N.E.2d 23, 27 (12th Dist.1991) ["Although appellant's conduct occurred after closing, evidence presented shows that store personnel remained in and about the store. Thus * * * K-Mart was an occupied structure during the time of appellant's theft"]; State v. Crawford, 1st Dist. Hamilton No. C-030540, 2004-Ohio-3895, ¶ 7 ["The trial court informed the jury that to find that the department store was an occupied structure required proof that persons were present or likely to be present in the structure"].
{¶27} Next, appellant contends she should not be penalized with a felony because the value of the item stolen was well below the "felony threshold" of R.C. 2913.02, the theft statute. As to value, appellee only had to prove that appellant stole property or services; the monetary value is not an element. The thrust of the offense of burglary as defined supra is trespassing upon the property of another to commit a criminal offense; in this case, the criminal offense happens to be theft. In short, the premise of appellant's argument is that the burglary offense is not appropriate for application to low-level shoplifting from Wal-Mart, but this argument is unavailing because it amounts to misreading the statute. Ohio case law is replete with instances of shoplifters charged and convicted of burglary because they were previously "trespassed" from Wal-Mart. See, e.g., State v. Morgan, 3rd Dist. Union No. 14-23-27, 2024-Ohio-625, ¶ 15; State v. Graham, 6th Dist. Wood No. WD-18-017, 2018-Ohio-5003, ¶ 2; State v. Hahn, 3rd Dist. Henry No. 7-21-02, 2021-Ohio-3789, ¶ 25; and State v. Skrepenski, 6th Dist. Wood No. WD-13-036, 2014-Ohio-2835, ¶ 5.
{¶28} We find that this is not an "'exceptional case in which the evidence weighs heavily against the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon the foregoing and the entire record in this matter we find appellant's convictions are not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury heard the witnesses, evaluated the evidence, and was convinced of appellant's guilt. The jury neither lost its way nor created a miscarriage of justice in convicting appellant of burglary and theft.
{¶29} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crimes for which appellant was convicted.
{¶30} Appellant's first and third assignments of error are overruled.
II.
{¶31} In her second assignment of error, appellant argues she received ineffective assistance of counsel because defense trial counsel should have raised her "occupied structure" argument during her motion for a judgment of acquittal pursuant to Crim.R. 29(A). We disagree.
{¶32} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially, a defendant must show that trial counsel acted incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).
{¶33} "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689. The question is whether counsel acted "outside the wide range of professionally competent assistance." Id. at 690.
{¶34} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test. Under this "actual prejudice" prong, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
{¶35} Appellant argues defense trial counsel should have argued Wal-Mart was not an "occupied structure." We rejected this argument in our discussion supra, and find the argument would also have been unavailing at trial. Instead, defense trial counsel focused on other elements of the offense, supra. Tactical or strategic trial decisions, even if ultimately unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
{¶36} Appellant has not demonstrated ineffective assistance of defense trial counsel and the second assignment of error is overruled.
CONCLUSION
{¶37} Appellant's three assignments of error are overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed.
Delaney, P.J., Gwin, J. and Wise, J., concur